Trump says DOJ violated its own election rules with recent filing. Lawyers disagree.

Soon after a judge unsealed special counsel Jack Smith’s massive filing laying out why Donald Trump is not immune from prosecution in the election interference case in D.C., Trump accused the Justice Department of violating its long-standing practice of not taking public steps in politically related cases close to an election.

“FOR 60 DAYS PRIOR TO AN ELECTION, THE DEPARTMENT OF INJUSTICE IS SUPPOSED TO DO ABSOLUTELY NOTHING THAT WOULD TAINT OR INTERFERE WITH SAID ELECTION,” Trump wrote on Truth Social. “THEY DISOBEYED THEIR OWN RULE IN FAVOR OF COMPLETE AND TOTAL ELECTION INTERFERENCE. I DID NOTHING WRONG, THEY DID!”

But legal experts say that’s not quite right. Smith’s 165-page filing - his response to a landmark Supreme Court ruling in July that broadened the scope of presidential immunity - and its timing were dictated by the high court’s demands and a judge’s best efforts to carry them out, experts said.

“I do not think you can over emphasize the point that Smith had no choice without abandoning the case,” said Philip Allen Lacovara, the deputy solicitor general during the Nixon administration who later served on the Watergate special prosecutor team. “This is hardly inconsistent with the letter or the spirit of the Justice Department 60-day policy.”

When the Supreme Court issued its ruling, the majority opinion was written in a way that left it up to the lower courts to decide what parts of the federal election interference indictment against Trump were not covered by immunity and could be prosecuted. U.S. District Court Judge Tanya S. Chutkan then decided she should start by seeking a brief from prosecutors, making their best argument about how Trump’s conduct could still be prosecuted in light of the Supreme Court’s decision.

Smith and his team have said in legal filings they had little choice but to publicly explain in detail the evidence collected against Trump, including a striking anecdote in which the former president allegedly said “So what?” when an aide told him that Vice President Mike Pence had been taken to a secure location as violence unfolded at the U.S. Capitol on Jan. 6, 2021. The special counsel noted the Supreme Court ordered the lower courts to conduct a “close” and “fact-specific” analysis of what is covered by presidential immunity, which Smith said his filing does.

Legal experts agreed. They said in interviews that such a filing is fair game since Smith’s filing is complying with court orders and deadlines. The Justice Department’s so-called “60-day rule” or “90-day rule” - which is not binding law, and which different officials interpret in different ways - calls on prosecutors to try to refrain from taking public steps in politically related cases, such as executing a search warrant on the eve of an election.

Justice Department officials have argued that once a case is in front of a judge, they must follow the court’s schedule - even if that schedule collides with a presidential election. The justices also have stressed that the lower courts should resolve immunity-related questions as soon as possible.

“What the Justice Department and the judge did is they followed the rules around criminal proceedings,” said David M. Driesen, a law professor at Syracuse University. “They followed the law, which is not to protect Trump or his political candidacy.”

Federal prosecutors first indicted Trump in the D.C. federal election interference case on four counts in August 2023. The case was frozen for months after Trump argued that presidential immunity should protect him entirely from prosecution, and the Supreme Court decided to take up that unprecedented legal question long before any trial.

The Supreme Court issued its decision in July, and the following month, Smith filed a superseding indictment with the same four charges but whittled down evidence against Trump that prosecutors said comported with the new parameters set by the justices on presidential immunity.

Mary McCord, who served as acting assistant attorney general for national security during the Obama administration and the beginning of the Trump administration, said Smith’s filing on Wednesday adhered to the Supreme Court’s orders.

“The Supreme Court issued this directive on July 1. They didn’t say, ‘Oh, by the way, don’t do any legal briefings before the elections,’” McCord said. “And it would be unusual to not even start until five months after the Supreme Court told them what to do.”

Trump has repeatedly sought delays in the four criminal cases against him, sometimes accusing the Justice Department of trying to inappropriately air unflattering allegations to impact the election.

Chutkan said at a court hearing last month that she would not consider the election when it comes to the “timing of legal issues and the timing of evidentiary issues.” And when prosecutors asked to file a larger-than-normal brief, she gave Smith the green light to make his filing up to 180 pages long.

In response, Trump’s lawyers warned in a brief to Chutkan that Smith’s filing could amount to a special counsel report, which typically includes a detailed recitation of all the facts a specially appointed prosecutor has gathered in their investigation.

But legal experts said that what Smith filed on Wednesday is far from a special counsel report - which the Justice Department would probably not release in the month before an election. They said a special counsel report includes all the findings of an investigation, even allegations that prosecutors do not believe are strong enough to introduce in court. In contrast, they said, Smith’s allegations in the Wednesday court filing are all ones that he believes he could successfully prosecute and must show to the court are not immune.

Smith made his filing under seal with proposed redactions, with Chutkan having final say over what could be released to the public. An appendix remains under seal. Chutkan has not yet ruled on what part of that document - which is expected to describe evidence in more detail - should be redacted.

While Chutkan “perhaps has discretion to keep these filings under seal, the default position for all court filings is that they be transparent to the public,” University of Michigan law professor Barbara McQuade said.

Trump, too, has something of an inconsistent history with his support of the Justice Department’s posture when it comes to making moves soon before an election.

On Oct. 28, 2016, 11 days before voters were set to head to the polls when Trump was running against Democratic nominee Hillary Clinton, then-FBI Director James B. Comey publicly announced he was reopening an investigation into Clinton’s use of a private email server. The move was later denounced by the department’s inspector general, and the FBI ultimately did not change its recommendation that Clinton shouldn’t be prosecuted. But Trump campaigned on that disclosure, accusing Clinton of being too irresponsible and careless to serve as president.

Smith’s filing Wednesday contained similar allegations as those in the superseding indictment. But the filing described in more extensive detail than before how many people - including Pence, party and state leaders, his own campaign officials, his own campaign lawyers, and others - told Trump there was no proof the election was stolen, and how Trump nonetheless waged a campaign to overturn the result.

Whatever Chutkan decides about the parameters of Trump’s immunity will probably be appealed to the circuit court of appeals - and ultimately the Supreme Court. If Trump loses the election, legal experts warned it could take the courts years to settle the questions around what in the indictment is allowed to be prosecuted and whether the case can go to trial. On Thursday, Trump filed a revived challenge to the four counts against him, citing another Supreme Court opinion from June that narrowed prosecutors’ ability to charge him with conspiring to obstruct and actually obstructing Congress’s Jan. 6, 2021, certification of the 2020 election.

If Trump wins the presidential election in November, he is expected to order his Justice Department to drop the case.

“This entire case is a Partisan, Unconstitutional, Witch Hunt, that should be dismissed,” Trump wrote in social media posts Wednesday.